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Autoduel trademarked by inXile - sued by Steve Jackson Games, trademark cancelled

Taka-Haradin puolipeikko

Filthy Kalinite
Patron
Joined
Apr 24, 2015
Messages
19,418
Codex 2016 - The Age of Grimoire Make the Codex Great Again! Grab the Codex by the pussy Bubbles In Memoria
Developers of the Death Skid Marks had some project that was going to be about turn based vehicular combat; unfortunately that project has been postponed and only thing that will probably come out of it is some artwork.
CSsM11tUYAAZKu8.jpg:large
They're doing some side scroller space rogue-lite instead.
http://steamcommunity.com/app/326150/discussions/0/594820656458077646/
 

Freddie

Savant
Joined
Sep 14, 2016
Messages
717
Location
Mansion
It would be nice to get anything decent really. Those games had cool settings.

The issue is that with the increasing cost of making games that get the requisite attention, developers would probably prefer not to take risks setting-wise (look at what happened to T:ToN).
Well, there isn't such thing as no cost for this. If studio develops their own setting, it takes time and effort, money. Licensing some existing setting isn't free either. And I'm not that sure if T:ToN is very good example for comparison. What I have read it wasn't that great game and word in niche fandoms travels fast.
 

LESS T_T

Arcane
Joined
Oct 5, 2012
Messages
13,582
Codex 2014
Testimony by Brian Fargo: http://ttabvue.uspto.gov/ttabvue/v?pno=91225722&pty=OPP&eno=36

Interesting points:
  • Fargo tells development history of the Autoduel game, and claims they're still working on it. It sounds like still in pre-production though. ("inXile’s recent work on Autoduel has included researching other games in the market, continuing work on design and design documents, and continuing work on concept and concept art.")
  • He says it's one of four news games inXile is working on. (So, this, Bard's Tale 4, Wasteland 3, and the open world survival game.)
  • It's a mobile/small game to be released on iOS and Steam. Sounds like it could be a spin-off of Wasteland.
  • Eric Daily is producer and BrotherNone (Thomas Beekers) is designer of this project.
  • Maybe just semantics, Fargo refers George Ziets as lead writer of inXile than lead designer. He doesn't tell if he's currently involved with this project.
Slightly condensed copy and paste of the testimony:

(Don't bother trying to look at the exhibits, they are redacted.)

6. At some point in 2013, I became aware that a company called Big Boat Interactive had filed an intent to use application for “AUTODUEL” for “computer game software for personal computers and home video game consoles.” At the time I learned of this, Maxx Kaufman was with Pixelbonic, which was working on a Kickstarter campaign with Big Boat Interactive for a computer game they intended to call “Autoduel.” I learned from Mr. Kaufman that SJG objected to use of the name “Autoduel” and filed an Opposition to Big Boat Interactive’s application for registration. I learned that Pixelbonic/Big Boat interactive decided it was easier to change the name than dispute the trademark issues over “Autoduel.” At the time, Mr. Kaufman was also working part-time for inXile, but inXile was not involved in the Pixelbonic/Big Boat Interactive Kickstarter project. Mr. Kaufman discussed the issues with me, at which time I told Mr. Kaufman I thought he should pursue use of “Autoduel” because I thought SJG did not own trademark rights in that term. I still believe this to be the case.

7. Indeed, during that time period, I learned from searching the USPTO website that SJG had long ago abandoned its only registration for “AUTODUEL!” At some point, I also learned that on May 23, 2013, apparently due to Big Boat Interactive’s trademark application filing, SJG filed an application to register “AUTODUEL” for “digital, downloadable, or electronic media; namely, text and graphic files of rules, maps, components, and supplements for family games, board games, and roleplaying games.” SJG claimed a first use in commerce of “at least as early as 01/06/2005,” which, based on what I have learned in this proceeding presumably referred to the time when SJG uploaded to www.warehouse23.com archived some of the back issues from the 1980s and early 1990s that included the word “autoduel.”

8. On information and belief, on March 31, 2014, the Trademark Office issued a Notice of Abandonment of SJG’s trademark application and, although the application was temporarily revived, the Trademark Office issued another Notice of Abandonment on November 28, 2014.

9. Based on the information of which I was aware, as of shortly before July 23, 2015, I knew Origin Systems had stopped selling the computer game Autoduel more than 20 years ago, and that SJG had abandoned all trademarks and trademark applications for “AUTODUEL.” I was aware of no other uses of “AUTODUEL” by anyone. Therefore, as of shortly before July 23, 2015, I understood that the mark “AUTODUEL” was available.

10. I have considered for many years the possibility of developing a post-apocalyptic computer game that would include battling vehicles. This is a fairly popular genre whose themes have been in popular movies such as the Mad Max franchise. In 2015, I decided to proceed with the design and development of such a game, and after I confirmed that “Autoduel” was available for a name, I decided to name my game “Autoduel.”

[...]

14. Attached hereto as Exhibit 55 is a true and correct copy of a November 11, 2015 email from me to others listed at inXile. In that email, I forwarded an article I had read on a gaming industry website, and commented to my design and development team: “It will be a fine line we walk with Autoduel for mobile when we decide to start designing it.” I was referring to a mobile phone version of Autoduel, which is one of the versions of the Autoduel game we are considering.

15. Attached hereto as Exhibit 56 is a true and correct copy of an email from Eric Daily to me dated December 4, 2015. Mr. Daily is and was at the time a Producer at inXile. In his email, which has the subject line “Wasteland: Autoduel mobile,” he refers to a conversation he overheard between me and “George,” who is George Ziets, who was at the time and is a lead writer at inXile, about a mobile vehicular combat game, i.e., Autoduel. Mr. Daily was giving me some ideas for the Autoduel game we were and are planning.

16. Attached hereto as Exhibit 57 is a true and correct copy of an email exchange on January 11, 2016 between Chris Keenan, who is and was at the time Vice President of Development at inXile, and me regarding the “mobile focused Autoduel product.”

[...]

19. Attached hereto as Exhibit 60 are email exchanges between persons at Pixel Dash Studios and persons at inXile from April 5 through April 12, 2016. The emails refer to a proposal Pixel Dash made to inXile for Autoduel. Pixel Dash is an outside studio that was aware of inXile’s plans for Autoduel and made the proposal in an effort to work with inXile on Autoduel. Pixel Dash’s April 5, 2016 proposal is also attached hereto. One of the emails from Matt Findley of inXile notes that Mr. Findley had talked to me about Pixel Dash’s proposal for Autoduel, and Mr. Findley was forwarding my general comments on their proposal.

20. Attached hereto as Exhibit 61 is an email I received from Mr. Beekers on May 30, 2016, with which he attached a “pitch” for his ideas for the Autoduel game. The thirteen page pitch is also attached hereto.

21. On January 5, 2017, Mr. Daily sent me an email with some thoughts about using “Autoduel” and possibly including independent developers. At that time, we were approaching the release of Torment, so it would be normal for Mr. Daily to be thinking about other projects in the pipeline to turn his attention to. On that same day, I responded to Mr. Daily. I indicated that Mr. Beekers had already prepared an initial design for Autoduel and that we would bring Mr. Daily into the loop. Attached hereto as Exhibit 62 is a true and correct copy of the January 5, 2017 email exchange.

22. inXile completed and released Torment on February 28, 2017. This freed up resources at inXile to focus on moving forward with other games in the pipeline. Shortly after the release of Torment, I formally assigned Mr. Daily as the Producer of Autoduel at inXile. Thereafter I assigned Thomas Beekers to be the Designer of Autoduel. Autoduel is now one of four new games inXile is working on. inXile’s recent work on Autoduel has included researching other games in the market, continuing work on design and design documents, and continuing work on concept and concept art.

23. inXile intended to use “Autoduel” for its game on July 23, 2015, and still intends to use it. On the other hand, although SJG claims it has continued to use the mark and intends to do so in the future, I have seen no evidence to support such a claim. I believe that SJG is simply trying to prevent others from using the name even though SJG has not used it for years and has no intent to use it.
 

LESS T_T

Arcane
Joined
Oct 5, 2012
Messages
13,582
Codex 2014
If this was going according to schedule there should have rebuttal disclosures from Steven Jackson Games in June. But I see no update on the site. I wonder what's going on (and how much money inXile and SJG have wasted on this thing!).
 

LESS T_T

Arcane
Joined
Oct 5, 2012
Messages
13,582
Codex 2014
If this was going according to schedule there should have rebuttal disclosures from Steven Jackson Games in June. But I see no update on the site. I wonder what's going on (and how much money inXile and SJG have wasted on this thing!).

Here it is: http://ttabvue.uspto.gov/ttabvue/v?pno=91225722&pty=OPP&eno=41

Just skimmed through it, I don't find anything interesting that was not in the previous docs.

Well, will the decision come out this year?
 

LESS T_T

Arcane
Joined
Oct 5, 2012
Messages
13,582
Codex 2014
Still going on...:

46 01/04/2019 CONFIDENTIAL PLAINTIFF'S SUPPORTING EVIDENCE/EXHIBITS

Fortunately(?), they are still operating despite the government shutdown, but for only a few weeks. The wait for the result of this showdown could be much longer...
 

LESS T_T

Arcane
Joined
Oct 5, 2012
Messages
13,582
Codex 2014
Decision is made: http://ttabvue.uspto.gov/ttabvue/v?pno=91225722&pty=OPP&eno=47

Fargo lost, but I guess this does not matter much after the acquisition.

VI. CONCLUSION

After considering all of the evidence made of record pertaining to the issue of likelihood of confusion, as well as all of the arguments related thereto, including any evidence and arguments not specifically discussed in this opinion, we conclude that confusion is likely between Applicant’s AUTODUEL mark for “[p]roviding online downloadable computer and video game programs; interactive video game programs” and Opposer’s marks AUTODUEL QUARTERLY, GURPS AUTODUEL, and AUTODUEL AMERICA used in connection with supplements for Opposer’s Car Wars game. We conclude so principally due to the similarities between the marks, the relatedness of the goods, the identity in classes of purchasers and Opposer’s showing of actual confusion by some members of the gaming community.

VII. BONA FIDE INTENT TO USE

Because we have found Applicant’s AUTODUEL mark to be confusingly similar to Opposer’s pleaded AUTODUEL marks, we need not address Opposer’s alternative claim that Applicant lacked a bona fide intent to use the mark when it filed its AUTODUEL application. See Multisorb Tech., Inc. v. Pactiv Corp., 109 USPQ2d 1170, 1172 (TTAB 2013) (“We see no point in going forward with a fraud claim when entry of judgment on the abandonment claim will result in cancellation of the registration, and judgment on the claim of fraud — which relates specifically to the procurement of the involved registration itself — would neither bar applicant from filing a new application nor allow petitioner to challenge it on the basis of claim preclusion.”).

Decision: The opposition on the ground of likelihood of confusion is sustained.
 

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